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Chief Justice Roberts's Marbury Moment: The Affordable Care Act Case (Nfib V. Sebelius), Stephen M. Feldman
Chief Justice Roberts's Marbury Moment: The Affordable Care Act Case (Nfib V. Sebelius), Stephen M. Feldman
Stephen M. Feldman
This essay is derived from the Jerry W. Housel/Carl F. Arnold Lecture, delivered on November 3, 2012 at the University of Wyoming College of Law. The work discusses Chief Justice John Roberts's decision in the Affordable Care Act case in light of its political significance as compared to the Madison v. Marbury case. The essay briefly summarizes the ACA case and goes on to focus on Congress's commerce power. It examines the constitutional doctrine that preceded the case and then explores how Roberts changed the doctrine.
Conservative Eras In Supreme Court Decision Making: Employment Division V. Smith, Judicial Restraint, And Neoconservatism, Stephen M. Feldman
Conservative Eras In Supreme Court Decision Making: Employment Division V. Smith, Judicial Restraint, And Neoconservatism, Stephen M. Feldman
Stephen M. Feldman
Commentators often describe Employment Division v. Smith as the beginning of a new era in free exercise decision-making. Before Smith, the Supreme Court typically articulated and applied a strict scrutiny standard to resolve free exercise exemption claims. After Smith, the Court deferred to the political process, upholding any reasonable law of general applicability. From a doctrinal standpoint, this description of Smith is perfectly accurate and informative. In this Essay, I argue that from a legal-political standpoint, Smith manifests the culmination of one type of judicial conservatism -- a traditionalist conservatism that had been developing since the 1970s. Judicial restraint and …
Diagnosing Power: Postmodernism In Legal Scholarship And Judicial Practice (With An Emphasis On The Teague Rule Against New Rules In Habeas Corpus Cases, Stephen M. Feldman
Diagnosing Power: Postmodernism In Legal Scholarship And Judicial Practice (With An Emphasis On The Teague Rule Against New Rules In Habeas Corpus Cases, Stephen M. Feldman
Stephen M. Feldman
Whereas modernists constantly attempt to reduce the meanings of texts to an essential core or single truth, postmodernists are antifoundationalists and anti-essentialists. According to postmodernists, the meaning of a text is never grounded or stable, and therefore one can always find multiple meanings or truths. Thus, one performs a postmodern flip by taking a segment of a text, event, or concept that apparently has been reduced to a static meaning or truth and suggesting the possible existence of another meaning or truth. The postmodern flip then is completed by exploring how this new meaning or truth of the segment of …